Applicant Name:  ?????

Application Receipt Date: 2010/02/02	Prior Review:     Prior Review Date: 070418, Denied 5-0    

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant submits no issues of equity or propriety to be considered by the board.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 030609
Discharge Received: 			   Date: 030813   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHB 1/3rd ADA, Ft Stewart, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020912, unlawfully grab a female (his wife) by the throat with his hand (020803); reduction to E4, forfeiture of $876 pay, suspended, to be automatically remitted if not vacated before (030311), extra duty and restriction for 45 days (FG).

021002, fail to go at the time prescribed x3; accountability, inspection and end of day formations  (020904); reduction to E4, extra duty and restriction for 14 days (CG).

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 000406    Current ENL Term: 3 Years  ?????
Current ENL Service: 	3 Yrs, 04Mos, 08Days ?????
Total Service:  		8 Yrs, 05Mos, 29Days ?????
Previous Discharges: 	RA 950215-970330/HD
                                       RA 970331-000405/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 14J10 Early Warning System Operator   GT: 99   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: AAM x3, AGCM, NDSM, NCOPDR, ASR, OSR

V.  Post-Discharge Activity
City, State:  Shawney, KS 
Post Service Accomplishments: None submitted by the applicant

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on  23 July 2003, the applicant was charged with failing to go at the time prescribed x7 (030321, 030326, 030414, 030605 x2, 030609, 030616), disobeyed a lawful order from a commissioned officer x4 (030605 x2, 030606, 030607), assault on an NCO (030605), disrespectful in language and deportment towards an NCO (030605), with the intent to deceive, make a false official statement to an NCO and a commissioned officer (030605).  
       On 31 July 2003, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated that he  understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did not submit a statement in his own behalf.  The unit commander (and intermediate commanders) recommended approval of an under other than honorable conditions discharge.  
       On 1 August 2003, the separation authority approved the discharge with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank. 
       The applicant's record contains a MP Report dated 3 August 2002 for assault consummated by battery with the applicant as the subject.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and the issue submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.
        Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  
       Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 20 April 2010         Location: Atlanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: Mr. Timothy Litke
               1725 I Street, Suite 300
               Washington, DC  20006

Witnesses/Observers: None 

Exhibits Submitted: The applicant submitted three documents from the Department of the Air Force, a memorandum from his spouse, a sworn statement from Migdalia Santiago and a ten page petition from his Counsel.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the analyst's recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20100008126
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